from the good-response-to-a-bad-situation dept

Well, that was fast. We just had our post about the unfortunate trademark situation that Sparkfun found itself in, with 2,000 multimeters held by US Customs at the border because they happened to have a yellow outside, and multimeter king Fluke happened to trademark an aspect of that look. Fluke, of course, had no direct hand in stopping this particular shipment, but had (a) gotten that trademark and (b) years ago gone to the ITC to get an injunction against other multimeter makers.

That said, it appears that Fluke's management recognizes how this kind of situation can spiral out of control, and after spending about a day understanding the details, made a public offer to Sparkfun: giving the company a pile of Fluke multimeters and letting Sparkfun do what they want with them (sell them, donate them, burn them in a pyre, whatever). As Fluke notes, the value of the equipment it's giving Sparkfun exceeds the lost shipment:

Earlier today we contacted SparkFun and offered to provide a shipment of genuine Fluke equipment, free of charge for them to sell on their site or donate. The value of the equipment exceeds the value of the Customs-held shipment. SparkFun can resell the Fluke gear, recouping the cost of their impounded shipment, or donate it into the Maker community.

While we will continue to enforce our trademark, we are taking this one-time action because we believe in the work of SparkFun supporting the Maker and education communities. This is important to us. We have been supporters of the Maker community for years through the donation of over half a million dollars worth of tools and employee time to organizations like First Robotics.

Sparkfun accepted and has announced it will be donating the multimeters to educational institutions and schools. Given the situation and potential PR headache for Fluke, this was probably the best solution.

It's not perfect however. There is still a shipment of 2,000 perfectly good hobbyist-level multimeters that are about to be destroyed for no good reason thanks to trademark law (what was that people were saying about trademarks being about "protecting" property rights? Seems like the opposite here...). Also, Fluke insists that it's going to continue to be aggressive about its trademarks in a somewhat misleading way:

Like any organization that designs and manufactures electronics, we actively work to stop lookalike products from making it to the marketplace. We do this to protect our company and the jobs of our employees. We also do so because it is a matter of safety for our customers. Our tools are used in high-energy industrial environments, where precision and safety is an absolute necessity.

I mention this because we firmly believe that we must be – and will continue to be – vigilant in protecting Fluke and our customers. One step in doing that was registering a trademark protecting the look and feel of our devices so our customers know that if it looks like a Fluke it’s a Fluke.

While it is true that trademark law, when used properly, should be about consumer protection, it seems to be going a bit far to suggest that a broad trademark on multimeters with a yellow and gray outer coating should give one company exclusivity over such a look. There is no indication that people were somehow confusing hobbyist-level multimeters like Sparkfun's with Fluke's high-end versions, nor any indication that anyone was using the cheap multimeters in a manner that put people at risk.

All in all, it's good to see Fluke quickly respond and try to make the best of the situation, but the underlying setup is still problematic.

from the urls-we-dig-up dept

Minted metal coins require quite a bit of design and planning in order to encourage people to actually use them and to keep them from being easily counterfeited. The recent buzz over various cryptocurrencies makes real, physical currencies sound outdated, but what would you rather have in your pocket? (Sure, you can carry around a lot more cryptocurrency on a thumb drive, but would you really want to?) Here are a few links on some new coins that you can collect and store in piggy bank.

from the blind-justice dept

Despite two earlier rulings that the US Justice Department needed to provide Kim Dotcom and others involved in Megaupload with the actual evidence being used against them for the extradition trial, an appeals court overturned those rulings and now the New Zealand Supreme Court has agreed in rejecting the request. While the chief judge dissented, the majority found that the extradition treaty does not require the country that has filed the charges against the individuals to provide the information and that the New Zealand courts have no real authority to order the US DOJ to provide the evidence. It does seem rather ridiculous that someone can be sent halfway around the world to face criminal charges without first being able to see the evidence against them, but that's apparently the law in New Zealand. They might want to fix that.

Either way, the actual extradition trial was recently pushed back until July (it had been scheduled to start in a few weeks). Seems quite bizarre that they're only just getting to the trial over extradition nearly two and a half years after Megaupload was seized and shut down. The judicial process isn't exactly known for its speed, which is kind of crazy when you realize how quickly (and with such flimsy evidence) DOJ and New Zealand officials acted to arrest Kim Dotcom and his colleagues.

from the where's-dianne-feinstein's-metadata? dept

With the NSA and its defenders still defending the bulk phone (and other) records collection programs as being about "just metadata," we've already highlighted how metadata is incredibly revealing. Now there's yet another study demonstrating this quite clearly. Jonathan Mayer and Patrick Mutchler, over at Stanford, did a study in which they convinced a bunch of people to run an app called MetaPhone, in which users agree to give up the metadata on their phone, voluntarily, for the sake of research. What these researchers found, of course, is that the metadata reveals an awful lot of details about one's lives, often much more clearly than if the actual content had been collected. The researchers give a few examples where what someone is up to becomes quite obvious very, very quickly.

Participant A communicated with multiple local neurology groups, a specialty pharmacy, a rare condition management service, and a hotline for a pharmaceutical used solely to treat relapsing multiple sclerosis.

Participant B spoke at length with cardiologists at a major medical center, talked briefly with a medical laboratory, received calls from a pharmacy, and placed short calls to a home reporting hotline for a medical device used to monitor cardiac arrhythmia.

Participant C made a number of calls to a firearm store that specializes in the AR semiautomatic rifle platform. They also spoke at length with customer service for a firearm manufacturer that produces an AR line.

In a span of three weeks, Participant D contacted a home improvement store, locksmiths, a hydroponics dealer, and a head shop.

Participant E had a long, early morning call with her sister. Two days later, she placed a series of calls to the local Planned Parenthood location. She placed brief additional calls two weeks later, and made a final call a month after.

We were able to corroborate Participant B’s medical condition and Participant C’s firearm ownership using public information sources. Owing to the sensitivity of these matters, we elected to not contact Participants A, D, or E for confirmation.

There's a lot more in the research, showing how it's relatively easy to pick out fairly sensitive information from a bunch of participants. And, remember, these participants opted-in, knowing that the information would be shared.

Of course, as we've said from the beginning, there's a pretty easy way to prove that everyone inherently knows that metadata reveals all sorts of sensitive information. Just ask any of the biggest defenders of these programs to share the metadata from their phone. They insist there's nothing sensitive in metadata, and yet, oddly they're unwilling to reveal their own.

from the another-week,-another-disruption-stifled dept

Last week, lots of attention was paid to New Jersey's idiotic and corrupt decision to block Tesla from operating its own stores there, because car dealers don't like the competition and hate the idea of car manufacturers selling direct. As we noted, any such move is a pretty clear sign of corruption at the state level, favoring political allies over the public. There are similar issues at the city level, and this week's corruption highlight award goes to Seattle, where the city council has massively limited ridesharing/app-based transportation services like Uber, Lyft and Sidecar. The law doesn't ban them outright, but makes them a lot less useful for consumers (and drivers) by saying each can only have 150 cars on the road at any time -- which is a hell of a lot less than the combined 3,000 they had.

There's simply no reason for this, other than to protect the legacy taxi providers. If consumers want those app-based services, why are they being blocked? And, of course, because so few cars will be available, those services become a lot less desirable (less likely to have a car available nearby, etc.). The end result is that it sucks for everyone. People wanting to get places will have fewer options. People who might want to earn money as a driver cannot. These new innovative companies are held back. The only "winners" are the current taxi owners who have less competition.

One council member, Tom Rasmussen pointed out the absurdity of this, and offered up an amendment (which was voted down) that said there shouldn't be any caps on drivers from such services:

"Let's listen to what the public is saying," he said. "Let's not cut supply when demand is so high."

The public? The public? Ha! They're not lobbying like the taxi and limo companies.

As another council member, Tim Burgess notes:

"Someone told me that trying to limit TNCs would be like prohibiting Netflix because we wanted to protect Blockbuster," Burgess noted.

Indeed. And yet... it's now the law in Seattle. In a city known for having a fairly thriving innovation and tech scene, the city council has just made it clear that innovation that upsets local incumbents just isn't welcome.

from the this-is-stupid dept

As pretty much all of you have been sending in, our favorite open source electronics firm, Sparkfun, has found itself in the middle of yet another unfortunate intellectual property issue that highlights how broken intellectual property law continues to be. In short, SparkFun needs to pay to have $30,000 worth of multimeters (2,000 of them) destroyed because they're yellow and because trademark law is stupid. Basically, electronics maker Fluke holds trademark 2796480, which is described thusly:

The mark consists of the colors dark gray and yellow as applied to the goods. The dotted outline of the goods is intended to show the position of the mark and is not a part of the mark.

The trademark makes clear that it is not claiming a trademark on the color yellow, but rather dark gray and yellow applied to something that looks like this:

Now, here's Sparkfun's multimeter:

And, apparently, while having these 2,000 multimeters shipped from China to the US, they were stopped by Customs because of an ITC ruling (warning: big pdf file behind that link) that blocks the import of:

digital multimeters and products with multimeter functionality that have a contrasting color combination of a dark-colored body or face and a contrasting yellow border, frame, molding, overlay, holster or perimeter.

And this is based on claims that other companies were violating that Fluke trademark we discussed above. As the folks at Sparkfun point out, this is all kinds of ridiculous and immensely damaging to them:

Yellow is awfully broad: In my mind, multimeters have always been yellow. I’ve never had the opportunity to own a Fluke-branded DMM so I’m not sure where my brain picked up this association. I can respect trademarks and company branding and I respect Fluke’s reputation for high-quality multimeters. If Fluke wants to own a color I would expect the USPTO to require them to assign an exact color just like Tiffany’s did with Tiffany Blue. But allowing a company to trademark ‘yellow’ seems broad.

Wicked burden on small business: Trademark law is heavily skewed towards large business. Small business does not have the resources to stay abreast of all trademarks for all the products they don’t carry. If you’re going to put the onus on the little guy to avoid infringing IP then you shouldn’t need an army of consultants or attorneys to find this information. We will lose $30,000 on this shipment. But the cost of the legal legwork and manpower to make sure we don’t violate a future color seems unreasonable and simply not feasible.

No recourse: Our multimeters are actually kind of orange, not Fluke yellow. The document from the Department of Homeland Security is matter of fact. Where is the opportunity for recourse? What is the appeals process? Because of a $150 per day warehousing fee we are forced to decide quickly with limited legal guidance and mounting penalty costs.

Decide between bad and worse: So we really only have two options, ship them back or have them destroyed. Having them destroyed costs $150 per hour with no indication of how much time it will take to destroy 2,000 units. Returning them has been ruled out by the manufacturer in China because the import taxes in China are so steep (yay free trade) that bringing them back into the country to have them modified would be more expensive than paying for the return shipping and taxes. Between bad and worse, we have to have them destroyed. Sorry Earth.

To be fair, the first point is slightly misleading. This isn't a color trademark like Tiffany Blue or the variety of other trademarks that have issued in the past (though many of those are ridiculous in their own right), but a specific trademark about how the color is used on a specific product. It's still ridiculous and makes no sense, but it's not directly comparable to color trademarks (which, again, are also ridiculous).

Sparkfun is using the publicity around the blog post in the hopes that Fluke might grant them a brief license to save these multimeters, but admits that's unlikely. The company is also changing the color of its multimeters, but likely going to need to eat the cost of the ones about to be destroyed. Because trademark law is, yet again, pretty ridiculous.

from the scroogled? dept

Apparently, Microsoft's desire to track down someone who leaked screenshots of Windows 8 is so strong that it's willing to violate its own privacy guidelines and promises to the public -- even if it means undermining Microsoft's main promotional campaign for email services.

A few weeks ago, Microsoft promoted Mark Penn to chief strategy officer. Penn is most famous as a PR man and political pollster who was the driving force behind Hillary Clinton's failed campaign for President in 2008. He's known for his negative attack ads and his claims to do everything based on data -- though, people who have explored some of his techniques say it's a lot more flimflam than actual statistical analysis. His main contribution to Microsoft over the past few years seems to be its ridiculous "Scroogled" campaign, in which Microsoft -- a company not at all known for its privacy protections -- attempts to portray Google as being bad on privacy. The campaign has been a colossal and expensive flop according to most.

Either way, you'd think that for a company who's main marketing strategy these days is all about how it protects the privacy of your email account wouldn't then break into a user's email account. But that's exactly what Microsoft apparently did in tracking down the guy who leaked Windows 8 to a reporter. Alex Kibkalo, a software architect for Microsoft, sent a French blogger some Windows 8 code and the way to get around its anti-piracy measures. The French blogger posted screenshots and also emailed Microsoft for comment -- and that's when Microsoft apparently decided to throw its privacy promises out the window:

The engineer was caught after the blogger emailed Microsoft to confirm the authenticity of the leaked Windows 8 code. Investigators at the firm then reportedly looked through the blogger’s hotmail account and instant messenger chats to identify the source of the leak, and found an email from Kibaklo.

Of course, Hotmail today has morphed into Outlook.com, and the current ad campaign about it states: "Outlook.com prioritizes your privacy!" and "Your email is nobody else's business." Oh really? I guess Microsoft considers it their business. It's kind of astounding, first, that Microsoft did this, and second that they appear to openly admit that you have no privacy at all in your email if Microsoft suddenly decides it wants to dig through and dig up something.

Update: And, from the criminal complaint we see, indeed, that Microsoft figured it was fine to violate this journalist's privacy:

from the oh-really? dept

We've written about Rep. Jerry Nadler a few times. He recently became the "ranking member" (i.e., highest ranking Democrat) on the House subcommittee on intellectual property, which clearly made copyright maximalists happy. Nadler has a history of heavily supporting copyright maximalist positions, including pushing for what was effectively an RIAA bailout a couple years ago, and has previously supported ridiculous dangerous concepts like a new copyright for fashion designs (and idea that is both unnecessary and likely to harm the fashion industry).

He's already off to a dangerous start, introducing a bill to create artist resale rights (something he's done before. This is an issue we've written about many times, creating a ridiculous idea that people who buy artwork no longer own it outright. Any time they resell the artwork at auction, they might have to pay some of the proceeds back to the original artist. As with the fashion copyright idea, what this does is harm innovative new artists by favoring wealthy established artists. As we've discussed, this punishes investors who are willing to support new artists, taking away their incentive to invest in those artists, while at the same time decreasing the incentive for other artists to continue producing art (since now they get paid multiple times for the same work).

“The ‘you bought it, you own it’ principle is an extreme digital view and I don’t think it will get much traction,” he said, referring to the mantra of proponents of the right to resell digital goods.

Oh really? The specific discussion concerned people wanting to be able to resell used ebooks, just like they can resell regular books. But, really, the idea that "you bought it, you own it" is somehow extremist? Isn't that a fundamental concept in property rights? In fact, we've highlighted how copyright maximalists are trying to destroy property rights by denying people the basic ownership rights over things they bought.

It seems extremely troubling when such a key member of the House subcommittee on intellectual property has such a negative view of our basic property rights.

from the wtf? dept

We've been covering the ridiculous DOJ case against Andrew "weev" Auernheimer for quite some time. If you don't recall, Auernheimer and a partner found a really blatant security hole on AT&T's servers that allowed them to very easily find out the email addresses of iPad owners. There was no breaking in to anything. The issue was that AT&T left this all exposed. But, with a very dangerous reading of the CFAA (Computer Fraud and Abuse Act) and a bunch of folks who don't understand basic technology, weev was sentenced to 3.5 years in jail (and has been kept in solitary confinement for much of his stay so far). Part of the case is complicated by the fact that weev is kind of a world class jerk -- who took great pleasure in being an extreme online troll, getting a thrill out of making others miserable. But that point should have no bearing on whether or not exposing a security hole, by basically entering a URL that AT&T failed to secure, becomes a criminal activity.

Throughout the case, it's been clear that the DOJ was trying to make up an interpretation of the law that had no basis in the actual technology world. And it became abundantly clear at a hearing before the appeals court concerning weev's case, that the DOJ really has no idea what weev did. They're just sure it's bad because it involves computers and stuff. Seriously, as reported by Vice:

"He had to decrypt and decode, and do all of these things I don't even understand," Assistant US Attorney Glenn Moramarco argued.

Say what? If that's the basis for being declared a felon and locked up for 3.5 years, almost everyone is a felon. It's likely that under that "standard" Moramarco himself is a felon, because I'll bet he "decrypts and decodes and all of these things he doesn't understand" on pretty much a daily basis. But, a tip to the US Attorneys' office: when prosecuting a computer crime, you might want to at least try to have someone who actually understands the fundamental basics of what the person you've locked up has done.

But, Moramarco apparently doesn't want to let his complete ignorance of what actually happened (someone putting a URL into a box and seeing the page that AT&T failed to secure) to get in the way of insane hyperbole about what he thinks weev did:

In its opening statement, the government made an incendiary comparison that seemed to reflect the nature of its understanding of the crime: the prosecution compared Auernheimer's deeds to hackers "[blowing] up a nuclear power plant in New Jersey" in an attempt to illustrate how it was a relevant venue.

Yes, apparently exposing the fact that AT&T left its customers' info wide open to anyone is the equivalent of blowing up a nuclear power plant. Yikes.

As the article notes, much of the hearing actually focused on the question of venue, and it appears that weev may get off on something of a technicality. Prosecutors had moved the case to New Jersey for no known reason and so it may get rejected for being the improper venue, which potentially could mean that the appeals court never even addresses the issue of just how badly the DOJ twisted the CFAA to bring down weev. The judges appear to be considering this, as they noted that based on the details of the case, there was no apparent connection to New Jersey and no reason why the DOJ couldn't have brought the case anywhere (one judge apparently mentioned Hawaii).

The case is important because of all the CFAA abuse we've seen by the DOJ over recent years, and now it sounds like the appeals court may be able to just skip over that issue entirely. Given the DOJ's own admissions of its lack of understanding about weev's actions, that actually might be the best thing for the DOJ, allowing it to continue to make completely bogus CFAA arguments to take down technologically sophisticated people that the DOJ doesn't like and doesn't understand.

from the finally dept

For years now, we've been writing about the FBI's now popular practice of devising its own totally bogus "terrorist plots" and then convincing some hapless individual to join the "plot" only to later arrest them to great fanfare, despite the fact that everyone (other than the arrested person) involved was actually an FBI agent, and there was no actual danger or real plot (or real terrorists) involved. In fact, we just had yet another such story. We've written about similar occurances over and over and over and over and over and over and over and over and over and over and over again -- and, depressingly, it seems that courts repeatedly uphold this practice as not being entrapment. Many have been questioning why the FBI is spending so much time and money creating fake terrorist plots that don't seem to protect anyone (but do give the FBI/DOJ lots of big headlines about "stopping terrorism!"), but the courts have basically let it go.

However, it finally appears that one judge thinks these kinds of things go too far -- and it happens to be Judge Otis Wright, whose name you may recall from being the first judge to really slap down Prenda law for its obnoxious copyright trolling practices. Reader Frankz alerts us to the news Wright has dismissed a case involving the Bureau of Alcohol Tobacco and Firearms (ATF) for a similar "made up crime" and completely trashed the government for doing these kinds of things. As with his order in the Prenda case, I urge you to read his full dismissal which is granted for "outrageous government conduct." Judge Wright, it appears, is not one to hide his opinions about those who abuse the legal system. The ruling kicks off with a hint of where this is heading:

“‘Lead us not into temptation,’” Judge Noonan warned. United States v. Black,
733 F.3d 294, 313 (Noonan, J., dissenting). But into temptation the Government has
gone, ensnaring chronically unemployed individuals from poverty-ridden areas in its
fake drug stash-house robberies. While undoubtedly a valid law-enforcement tool
when employed to target or prevent demonstrated criminal enterprises, reverse stings
offend the United States Constitution when used solely to obtain convictions.

This case didn't involve "terrorism" like the FBI cases, but rather a similar "reverse sting" in which an ATF agent pretends to be a cocaine courier, tells some dupes about a "stash house" he knows about and then pushes them to rob the house. The ATF agent convinced a couple of guys, Cedrick Hudson and Joseph Whitfield, to take part, and they eventually brought along a third guy, Antuan Dunlap, after the ATF guy kept asking them to bring along associates. The group, lead by the ATF agent's detailed plan, agreed to rob this house and then were all arrested. It's the third guy, Dunlap, who argued that the government was engaged in outrageous conduct. The government claims that Dunlap bragging about being involved in past robberies means that it was perfectly reasonable to arrest him here, but Wright isn't having it:

the Court finds that the Government’s extensive involvement
in dreaming up this fanciful scheme—including the arbitrary amount of drugs and
illusory need for weapons and extra associates—transcends the bounds of due process
and renders the Government’s actions outrageous.

Wright is not persuaded by the fact that Dunlap apparently bragged about his criminal past to the ATF agent, noting the reality of the situation:

It makes little sense to justify
the Government’s capricious, stash-house scheme at its inception by what Thompson
later learned about Dunlap. In a situation where an apparently experienced cocaine
courier is boasting to some small-time crooks about the chance to hit the mother lode,
it is only human nature that the individual is going to try to impress the courier with
wild tales of past criminal conduct. In this case, there is no evidence that Dunlap
actually robbed a Western Union or Nix. But even if he did, Thompson did not learn
about Dunlap’s alleged past crimes until after Dunlap joined the doomed-to-fail crew.
The Government cannot bootstrap this post hoc knowledge to justify the scheme from
the beginning.

Those commercial robberies also bear little upon the fictitious stash-house
scheme or the home invasions the ATF sought to eliminate. In fact, when Dunlap was
bragging about this past exploits, he disavowed any connection to drugs:

So contrary to the Government’s contention, Dunlap’s
“admissions” only served to demonstrate that he had no propensity to commit drug
crimes—the entire subject of the reverse sting.

Judge Wright clearly sees how allowing this kind of activity is going to lead to serious problems, especially as law enforcement can prey on desperate individuals, coax them into various plots, and then arrest them:

Allowing after-the-fact knowledge to mitigate the Court’s concerns in a
situation like this also creates a perverse incentive for the Government. It encourages
the Government to cast a wide net, trawling for crooks in seedy, poverty-ridden
areas—all without an iota of suspicion that any particular person has committed
similar conduct in the past. And if the Government happens to get it right and catch
someone who previously engaged in crime, the courts will place their imprimatur on
the whole fishing expedition.

The Court declines the invitation to endorse this nab-first-ask-questions-later
approach. While this situation is a win-win for the Government, it is really only lose-lose for the unwitting individuals unlucky enough to fall into the Government's net. If
they have never committed criminal activity in the past but agree to participate in the
fake robbery, they go to prison—unless they can surmount the Everest-like hurdle to
establish an entrapment defense.

This is important, because many people try to fight back against these kinds of cases with claims of entrapment, but Judge Wright correctly notes that (unfortunately) the bar to meeting an entrapment claim is ridiculously high. However, it's pretty obvious that there is no crime here absent the government's own intervention:

But for the undercover agent’s imagination in this case there would be no
crime. The undercover agent invented his drug-courier persona, the stash house, the
20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals
supposedly guarding the stash, the need to use weapons, and the idea of robbing the
stash house. He even provided the putative safe house and getaway van. Dunlap
brought little to the table besides his sheer presence and perhaps the hope of being
able to obtain some quick cash.

.... Despite the Supreme Court’s admonition, the ATF manufactured this entire
crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that
Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them.

Furthermore, Judge Wright notes that the government encouraged the activity, even if it wasn't to the level of entrapment, it was still quite clearly the key driver of the entire "crime" and that's what makes it "outrageous."

...here, the undercover agent
provided a getaway van, putative safe house, and—most important of all—the entire
scheme and its fictitious components. He also alleviated Defendants’ logistical and
safety concerns when he “proposed that he would be inside the stash house at the time
of the robbery . . . .” ...

Thompson also goaded Defendants to acquire weapons. He repeated several
times over the course of the two-month ruse that “at least one of the individuals
[guarding the nonexistent stash house] always carried a firearm.” ...
(“SA Thompson asked if HUDSON and WHITFIELD’s associates could handle it if
something happened during the robbery (referring to someone getting shot).”); ...
(“SA Thompson asked if they could get him something (referring to a firearm), and
WHITFIELD indicated he could get SA Thompson a little .380.”); ... (“SA
Thompson asked about WHITFIELD getting him a little ‘strap’ (referring to a firearm
that was previously discussed) and SA Thompson offered to cash him out (meaning
pay him for the firearm). WHITFIELD indicted [sic] he could get SA Thompson
something.”); ... (“SA Thompson next mentioned that there was always two
individuals in the stash house and at least one of them was always armed, but as far as
he knew, both could be armed.”); ... (“SA Thompson later indicated that the
occupants of the stash house may not go down very easy.”); ... (“Like
I said the one fool he is always strapped, but the other dude I think he might be, I just
don’t know.”).) With Thompson continually sounding the war horn, it is not
surprising that Defendants showed up to the final meeting with two weapons.

The undercover agent’s continued participation, assurances, and suggestions
over the course of the two-month period made him “a partner in the criminal activity”
rather than a mere “observer.” See Black, 733 F.3d at 308. His input was likewise
“necessary” for Defendants to carry out their doomed plan, since but for Thompson’s
imagination, there would have been no fictitious stash-house robbery to begin with—
let alone the need for guns and extra associates.

Judge Wright points out that the government's attempt to brush all of this away by noting the guys were willing participants is bogus, since they're effectively preying on the extremely poor with promises of easy money. And, given the situation, the government can manipulate all the factors to basically nab anyone.

In these stash-house cases, the Government’s “participation in the offense
conduct” is what makes them particularly repugnant to the Constitution. Everything
about the scheme—and therefore almost everything bearing upon a defendant’s
ultimate sentence—hinges solely on the Government’s whim. Why were there not 10
kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly
armed—necessitating that Defendants bring weapons along with them? All of these
factors came down to the ATF and the undercover agent alone. That sort of
arbitrariness offends the Constitution’s due-process demands.

In fact, Judge Wright notes that all of these choices by the ATF were not accidental. The push to get them to bring drugs, the amount of cocaine being discussed, each help the government pile on charges and potential time in jail. And while the government claims that defendants can argue a lack of intent in their own defense, Judge Wright notes that very few of these cases ever go to trial, because with the huge number of years in jail that people face, they almost always take a plea deal.

With the capriciously selected amount of
drugs, a defendant has the proverbial Sword of Damocles hanging over his head. He
is not likely to let it fall and face the considerable prison time that surely awaits him if
he loses at trial—especially when the Government has spent, like in this case, months
recording conversations inculpating him in the trumped-up conspiracy.

Judge Wright notes the absurdity of sentencing guidelines based on a crime that is entirely made up by the government:

But the Government’s rationalization is hopelessly circular. The Government
seeks to prosecute Dunlap for a fake crime it cut from whole cloth. To justify the
serious sentence Dunlap faces as the result of its imagination, the Government
attempts to use its creation of the crime, including the need to establish the undercover
agent’s credibility, as the validation for the amount of drugs. The amount of drugs
then justifies the sentence. But since the Government created each necessity and
justification, the sentence no longer bears a proportional relationship to the
defendant’s culpability—just the Government’s imagination. Something more than
mere bootstrapping is needed for the Government to take 15-plus years away from
Dunlap’s life.

The Government’s argument also proves the problem with this whole scheme.
The Government asserts that it dreams up these stash-house robberies to catch people
inclined to commit home invasions. But the Government must make the robbery
scheme tempting enough to nab a potential criminal. The Government thus sets the
drug amount at a level apparently it knows that no poverty-ridden individual could
pass up. So the Government essentially admits that this ruse is not meant to simply
skim off those individuals likely to commit similar crimes; rather, it is designed to
never fail. And the high number of fake stash-house convictions the Government has
attained confirms this strategy.

Judge Wright doesn't mince words about the impact of this case:

Zero. That’s the amount of drugs that the Government has taken off the streets
as the result of this case and the hundreds of other fake stash-house cases around the
country. That’s the problem with creating crime: the Government is not making the
country any safer or reducing the actual flow of drugs. But for the Government’s
action, the fake stash house would still be fake, the nonexistent drugs would still be
nonexistent, and the fictional armed guards would still be fictional.... Instead,
the Government comes close to imprisoning people solely because of their thoughts
and economic circumstances rather than their criminal actions.

So, the whole operation does nothing to take drugs off the street or stop any real crime. Instead? It just costs us all money:

But these stash-house cases do cost someone money: federal taxpayers. As of
the date of this Order, there are 215,566 inmates in federal detention.... According to the Bureau of Prisons, the
average cost to incarcerate a federal inmate in 2011 was $28,893.40.... In fictitious stash-house cases, the ATF usually seeks a 15-year sentence.... These fake robberies therefore cost
federal taxpayers approximately $433,401 per defendant in incarceration costs
alone—not to mention investigative, prosecutorial, defense, and judicial resources.

Judge Wright concludes with a stinging rebuke of the federal government and how it has confused law enforcement with "crime creation."

The time has come to remind the Executive Branch that the Constitution
charges it with law enforcement—not crime creation. A reverse-sting operation like
this one transcends the bounds of due process and makes the Government “the
oppressor of its people.” .... In this case, the
Constitution will not tolerate subjecting an individual to prosecution for an imaginary
crime subject to a very real punishment—a punishment which rests entirely on ATF
agents’ whims.

It is entirely likely that the DOJ will appeal, but for now, once again, we send out kudos to Judge Wright for seeing a true scam for what it is and for not being afraid to actually use his power as a judge, who is in charge of upholding the Constitution, to push back on clear abuses of the Constitution.

from the well-there-goes-that-one dept

While the Google/Viacom lawsuit over YouTube settled this week, one case that it had a direct impact on was the lawsuit of Capitol Records/EMI against MP3Tunes and its founder Michael Robertson. The entire lawsuit seemed to be yet another case involving the record labels just being generally angry about innovation, which is why it targeted Robertson personally. While MP3Tunes initially, won, the court still found that Robertson could be personally liable for songs that he had "sideloaded" himself as a part of the service.

The case then bounced around a bit, and with the appeals court ruling in the YouTube case, the judge in the MP3Tunes case withdrew the original ruling and decided to take another look. That's now resulted in a jury apparently finding that MP3Tunes was "willfully blind" to infringement. That's a troubling find on many levels. While the link above focuses on the jury also finding Robertson personally liable for "sideloading" songs, that part isn't all that surprising. Without thinking too deeply about it, it's no surprise that a jury would think that sideloading (moving songs found publicly online into a locker) might violate copyright law, even if it does raise some significant legal issues. Robertson made the rather valid point that it was impossible for him to know if the songs were infringing, especially since EMI itself was giving away songs for free, and knew that having such songs freely available increased sales. So to blame him for not knowing which songs were authorized and which were not seems unfair -- but the jury apparently disagrees.

What's much more concerning is this claim that an online locker service might be deemed "willfully blind" to infringement, even in the absence of things like DMCA notices. It raises serious questions for pretty much all cloud services that might store content, much of which may be covered by someone's copyright.

from the bogus dept

Update: With little fanfare, the Guardian has now added a note (at the bottom) saying that it has adjusted the story because of the initial misleading claims:

This article was amended on 20 March 2014 to remove statements in the original that the testimony by Rajesh De contradicted denials by technology companies about their knowledge of NSA data collection. It was also updated to clarify that the companies challenged the secrecy surrounding Section 702 orders.

I wonder how many people who have been repeating the initial misleading claims will go back and see that change? Original story below:

I'm seeing a bunch of folks passing around a story by Spencer Ackerman at The Guardian, claiming that tech companies lied about their "denials" of PRISM. The story is incredibly misleading. Ackerman is one of the best reporters out there on the intelligence community, and I can't recall ever seeing a story that I think he got wrong, but this is one. But the storyline is so juicy, lots of folks, including the usual suspects are quick to pile on without bothering to actually look at the details, insisting that this is somehow evidence of the tech companies lying.

So, let's look at what actually happened. The report is based on statements by Rajesh De, the NSA general counsel, who was testifying before the US's Privacy and Civil Liberties Oversight Board (PCLOB). Here's the part that's catching everyone's attention:

Asked during at a Wednesday hearing of the US government’s institutional privacy watchdog if collection under the law, known as Section 702 or the Fisa Amendments Act, occurred with the “full knowledge and assistance of any company from which information is obtained,” De replied: “Yes.”

When the Guardian and the Washington Post broke the Prism story in June, thanks to documents leaked by whistleblower Edward Snowden, nearly all the companies listed as participating in the program – Yahoo, Apple, Google, Microsoft, Facebook, Paltalk, AOL – claimed they did not know about a surveillance practice described as giving NSA vast access to their customers’ data. Some, like Apple, said they had “never heard” the term Prism.

Everything stated above is technically true, but misleading. The problem is that what the companies denied is not what De is talking about. What they denied is what both the Washington Post and the Guardian initially implied: that the NSA had "direct access" to the servers of the nine companies named under PRISM, with the clear implication of the stories being that direct access was to basically all servers. All of the companies denied that level of access (which was and remains true). They also (as Ackerman does mention) denied knowing what PRISM was. Within a day or so, it became quite clear that "PRISM" was merely orders under Section 702 of the FISA Amendments Act -- which is what eventually lead a bunch of those same companies to sue the government, saying they wanted to reveal the details of the Section 702 orders that they got, including how many orders they received and how many user accounts were impacted by those orders. The very reason they filed that lawsuit was in an attempt to prove that PRISM/Section 702 orders were never about full access to everything, but rather more targeted requests approved of by the FISA court (it's fair to point out that the NSA's definition of "targeted" is more broad than you and I would like, but that's a separate issue).

In January, that lawsuit was settled, with the DOJ giving companies (for the first time) the ability to reveal (in quite a limited way) how many FISA orders they received and how many "customer selectors targeted." And, in fact, a bunch of companies have done so. Here, for example, we wrote about Yahoo and Google's reporting of those requests. For example, from January to June of 2013, Google received between 0 and 999 FISA orders, including 9000-9999 user accounts targeted. During the same period, Yahoo received between 0 and 999 such orders, targeting between 30,000 and 30,999 accounts. Much of that is PRISM -- and no one has ever denied that. It's unfortunately obfuscated, because the "FISA orders" lump together the Section 702 "PRISM" orders with separate Section 107 orders, and (worse) because the companies can't really reveal users impacted, just customer selectors targeted. That obfuscation is a big problem, but is entirely unrelated from the original reporting on PRISM and the companies' response.

So, yes, of course companies were aware of the Section 702 orders they get. That's the only possible way they can comply with Section 702 orders. And, certainly, the only way they could report on how many such orders they got. What they denied was the original reporting which suggested, incorrectly, that PRISM was a much broader program, that involved direct access to these companies systems, allowing them to suck out just about anything. That was never true, and that was what they were denying. The lawsuit and the transparency reports were all about (attempting to) clear up that confusion, showing that these companies simply comply with Section 702 orders, rather than grant broad access to all accounts, as the original reports implied. And, in fact, the release of those transparency reports provided at least a little transparency (tragically muddied by the DOJ's requirements). There are separate issues about other ways that the NSA got access to these companies information, such as hacking into datacenters connections, but that's unrelated to PRISM.

Ackerman has been following all of this, so I'm both confused and surprised for why he'd fall for De's attempt to suggest that the companies were lying. Even more bizarre is his claim that De's comments were "contradicting the tech companies about the firms' knowledge of Prism." But that's not true. De is saying the companies knew about Section 702 orders, which of course they did. Otherwise, why would they have been fighting to reveal the details -- and why else would they have posted the details to their transparency reports? I find it hard to believe that Ackerman doesn't know about the very transparency reports from the companies that show that the companies were (of course) aware of the Section 702 orders he says in the article they denied. They never denied such orders.

If anything, this feels a lot more like the NSA (as the NSA does) using careful language choices to attack-by-false-implication the tech companies who have recently been fighting hard to encrypt more data to make it harder for the NSA to crack into their systems (not under PRISM, but under Executive Order 12333). In the end, De's claim is a non-story, turned into a misleading story.

The Foreign Office has unlawfully hoarded more than a million files of historic documents that should have been declassified and handed over to the National Archives, the Guardian has discovered.

The files are being kept at a secret archive at a high-security government communications centre in Buckinghamshire, north of London, where they occupy mile after mile of shelving.

Most of the papers are many decades old -- some were created in the 19th century -- and document in fine detail British foreign relations throughout two world wars, the cold war, withdrawal from empire and entry into the common market.

They have been kept from public view in breach of the Public Records Acts, which requires that all government documents become public once they are 30 years old -- a term about to be reduced to 20 years -- unless the department has received permission from the lord chancellor to hold them for longer. The secret archive is also beyond the reach of the Freedom of Information Act.

The UK Foreign Office is holding a conference to explain how it will finally place into the public domain millions of public records that it has unlawfully held for decades -- but is refusing to allow members of the public to attend.

from the why-on-earth-did-it-do-that? dept

Back in 2012, we wrote about Philip Morris suing Australia for requiring plain packets for cigarettes. Significantly, the company brought that action under a 1993 agreement between Australia and the government of Hong Kong. That's because Philip Morris was unable to use the far more important free trade agreement with the US, which Australia had wisely insisted should not contain a corporate sovereignty (ISDS) chapter. Given that experience of being sued by a company simply as result of introducing new laws to protect the health of its citizens, it's curious that the newly-installed Australian government seems to be reversing its position:

Australia's new free trade agreement (FTA) with South Korea, promoted as a win for Australian exports, includes a clause that could spell big trouble for Australia's environmental movement and sovereignty.

The FTA, agreed upon by both nations but yet to be ratified by parliament, includes an Investor-State Dispute Settlement (ISDS) provisions that allows overseas investors to challenge threats to their business interests in international courts.

As that article on newmatilda.com points out, if Australia does indeed ratify the agreement with South Korea, it may not have to wait long before ISDS gets used against it:

There are currently three South Korean mining companies in NSW with significant interests in huge and environmentally controversial coal projects.

Because of the environmental damage they cause, there is growing resistance to these kinds of projects in Australia:

Over the past three years environmental campaigners in [New South Wales] have achieved some significant wins against coal seam gas mining companies including in the Northern Rivers, at Fullerton Cove and in the Illawarra and Sydney.

The O'Farrell government has also introduced some legislation, such as the No Go Zones for Coal Seam Gas (CSG) mining in Sydney, and a moratorium on CSG in Sydney Drinking Water Catchments. The [Environment Protection Authority] has also fined, albeit extremely modestly, a number of mining companies for pollution breaches.

These hard fought wins are all in jeopardy if the foreign-owned companies can sue for loss of financial return.

The Australian Fair Trade & Investment Network (AFTINET) notes that the Department of Foreign Affairs and Trade in Australia claims public welfare, health and the environment have been excluded from ISDS in the South Korean agreement, and so there is no reason to worry that Australia will be sued because of environmental action against its coal mines, say. But AFTINET goes on to point out:

Such "exclusions" in the Peru-US Free Trade Agreement and the US-Central America Free Trade Agreement didn't stop the Renco lead mining company from suing the Peruvian government when they were required to clean up their lead pollution, or the Pacific Rim company from suing the El Salvador government because it refused a mining license for environmental reasons. Investors have pursued cases in other countries by claiming the process of developing the law did not include "fair and equitable" treatment for them.

Being sued by South Korean companies could be just the start. There are indications that Australia may also be willing to accept a corporate sovereignty chapter in TPP in exchange for better market access in the other TPP nations for Australian goods. In which case, US companies like Philip Morris wouldn't even have to use obscure treaties to sue Australia, but will be able to do so directly under TPP.